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In California, can law enforcement issue a citation for an infraction without witnessing the crime, in person or on recording?

Los Angeles, CA |

Say that a particular crime is expressly defined by the penal code as only an infraction: a fine, no jail.

Also say that a particular law enforcement officer--i.e., a member of a municipal police department--who responds to a report of the crime has probable cause, i.e. a reasonable belief, that a particular person, let's call him Sammy Suspect, has committed the crime; however, the officer investigates the crime after it has been committed and after the perpetrator has long since fled, and no security camera surveillance footage of the crime's commission exists.

In California, can the law enforcement officer issue a citation to Sammy by applying the standard of probable cause applied to misdemeanors or felonies, i.e. a reasonable belief that Sammy committed the infraction?

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Attorney answers 3

Posted

Yes. Law enforcement does not need to see Sammy commit the offense. If there is sufficient circumstantial evidence to lead law enforcement to reasonably conclude that Sammy is the responsible person, a citation for an infraction can be issued to Sammy.

As you have correctly stated, the standards for a misdemeanor and felonies differs, especially as to felonies.

This is a common issue in the use of cell-phones, which you may have had in mind when framing this question. In the 2006 case of People v. Wells (2006) 38 Cal. 4th 1078, a CHP officer made a traffic stop of a suspected drunk-driver just north of Bakersfield. The officer claimed he had received a dispatch call telling him that there was a “possible intoxicated driver” on the freeway “weaving all over the roadway.”

The caller described the vehicle as a 1980’s model, blue van and said it was heading northbound on Route 99. An officer in the vicinity then intercepted the van and stopped it. The driver was Susan Wells.

The officer determined that Wells seemed to be under the influence, although he did not notice any problem with her driving. He then arrested her. An inventory search of her van revealed heroin and several syringes. Wells then tested positive for marijuana (THC), cocaine and opiates.

Wells was then prosecuted for DUI (non-alcohol) and several drug-related charges. She moved to suppress all evidence on the grounds that there was an illegal traffic stop because the officer did not witness any unsafe driving and therefore lacked a reasonable suspicion to justify a traffic stop. Indeed, the general rule is that a traffic stop must be based on a reasonable suspicion that a crime is being committed. Wells argued there could be no exception.

Her motion to suppress was denied and then appealed all the way to the California Supreme Court, which also denied her appeal. The Supreme Court ruled that not all traffic stops, however, based on anonymous tips are proper.

Instead, and perhaps to limit abuse by the police, the Supreme Court said a traffic stop based on an anonymous tip is proper when:

1. The police officer concludes that the car to be stopped is the same car as reported. This must be based on a sufficient description of the car and its location;

2. The caller saw and described a violation of the law;

3. The caller describes a dangerous situation posed by the car (and driver); and

4. The caller’s reliability is good.

The California Supreme Court did not require that the caller provide a license plate number, although a federal court in the Eight District (California is in the Ninth District) did suggest this was necessary.

I hope this answers your question and helps you understand the issues better.

Asker

Posted

You provided a great and thorough response, far more detailed than I was expecting on Avvo. As you might have guessed from my question, I have attended law school although I am not a practicing attorney. I am an entrepreneur and studied a transactional area of law to acquire the legal knowledge and skills that make me a better businessman. But once in a while I turn to Avvo for questions in other areas of law, such as criminal defense. However, you changed the facts of my question somewhat. The crime at issue in my question doesn't involve driving, and in driving the state has a more compelling public safety interest than in non-driving situations; also, the crime in Wells (DUI) was more serious than a non-traffic infraction (i.e. playing a stereo loudly on the subway, or failing to pick up your dog's excrement off the sidewalk); in Wells, the crime was observed by citizens who relayed their observations to law enforcement, whereas in my question no one at all contemporaneously observed the actual commission of the crime; and lastly, the standard at issue in Wells was reasonable suspicion to detain without observation, not probable cause--which is a reasonable belief that a suspect has committed a crime--whether to arrest or to issue a citation. In the fact pattern of my question, the officer did not wait to investigate by following up on a reasonable suspicion to question Sammy before concluding that Sammy had committed the infraction and issuing the citation or arrest (if arrest is allowed for infractions without the possibility of jail time). This is not a purely academic question. I'm asking on behalf of a friend of mine, again let's call him Sammy, who committed a non-traffic infraction. Sammy is not worried about the reasonable suspicion, which would only allow him to be briefly detained while officers ask him questions--that's only an inconvenience which Sammy doesn't mind dealing with--but SWIM is worried about the possibility of arrest (since I believe that officers can arrest for infractions that ultimately allow only for a fine, not jail time). Do these additional facts, which take the crime outside of the state's compelling interest for traffic safety and lessen the reasonableness of the officer's belief since no witness can provide a description of the suspect as occurred in Wells? Allow me to clarify that the infraction is not related to driving or traffic, and that Sammy is smart enough to refuse to answer any question posed by the investigating officer or to consent to a search of his property. Would the officer be able to arrest or issue a citation to Sammy for a non-traffic infraction that the officer did not

Asker

Posted

*observe and that no witness provided a description of the suspect, as occurred in Wells?

Posted

The answer could be yes and no. In certain circumstances yes, they could, and sometimes they cannot. Depending on the facts of the case. The way you explained it, it is really hard to tell. I believe an attorney can give you a better assessment if you call one and talk about the real case.

Sharon Paris Babakhan
818-480-3571
www.sharonbabakhanlaw.com

Posted

The simple answer is yes. Officers can rely on reports of other persons in order to issue a citation for a misdemeanor or infraction. They do not have to personally witness the offense, but they do have to have some information from some real person in order to substantiate probable cause for the citation.

Attorney James R. Fox If you found this answer helpful, let me know by clicking the "Mark as Helpful" button at the bottom of this answer or select it as Best Answer. It’s easy and appreciated. This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.